1. The testing procedures provided by Kansas statutes and regulations concerning
suspension of a driver's license for failure to pass a breath test comport with
constitutional due process.

2. In an administrative hearing concerning driving privileges, under K.S.A. 8-1001 et
seq.,
expert opinion that a different test or protocol for the test would be more reliable, is not
relevant to the issues involved.

PIERRON, J.: Benjamin E. Meehan appeals from a partial summary judgment
ruling in favor of the Kansas Department of Revenue (KDR) regarding the suspension
of his driver's license after a result of .08 on a breath test. We affirm.

Meehan's driver's license was suspended by the Kansas Department of
Revenue (KDR) after he failed a breath test as provided in K.S.A. 1997 Supp. 8-1001.
Meehan appealed. The district court granted partial summary judgment in favor of the
KDR on evidentiary questions regarding the reliability of breath test procedures
approved by the State and used by the police officer. Thereafter, the district court
entered an order upholding the suspension of Meehan's driver's license for failing a
breath test under K.S.A. 1997 Supp. 8-1002. The issue on appeal is whether the
district court erred in granting partial summary judgment--i.e., whether there was a
genuine issue of material fact.

It should be emphasized that Meehan's primary arguments before the district
court were that the breath test results were not reliable and, therefore, should not be
admitted into evidence. Meehan also attempted to submit an expert's testimony at
trial,
apparently to argue that the district court should discredit or give little weight to the
results because of questions of reliability. On appeal, Meehan continues to argue that
the single test procedure approved by KDHE is not scientifically reliable. Again, the
attack appears to focus more on the admissibility of the test results, not the weight the
trier of fact should give to those results.

The starting point in the analysis is the language of the pertinent statutes.
Kansas law states that "[a]ny person who operates or attempts to operate a vehicle
within this state is deemed to have given consent . . . to submit to one or more tests of
the person's blood, breath, urine or other bodily substance to determine the presence of
alcohol or drugs." K.S.A. 1997 Supp. 8-1001(a). The legislature gave the law
enforcement officer the right to select which type of test is used, but requires the officer
to advise the licensee of his or her right to refuse the test and the consequences which
may arise if the test is not taken or refused. K.S.A. 1997 Supp. 8-1001(f)(1). The
licensee also is advised he or she has the right to secure additional alcohol testing on
his or her own. K.S.A. 1997 Supp. 8-1001(f)(1).

After a licensee fails an alcohol breath test (scoring an alcohol concentration of
.08 or more) and the KDR is so advised, KDR serves a notice of suspension on the
licensee. K.S.A. 1997 Supp. 8-1002(a)(2) and (c). If a timely request for a hearing is
received from the licensee, a hearing is scheduled before KDR. The scope of the
administrative hearing is set forth in K.S.A. 1997 Supp. 8-1002(h)(2). This statute limits
the issues that can be raised in such a hearing. Those issues can include whether "(D)
the testing equipment used was reliable; (E) the person who operated the testing
equipment was qualified; (F) the testing procedures used were reliable; (G) the test
result determined that the person had an alcohol concentration of .08 or greater in such
person's blood or breath." K.S.A. 1997 Supp. 8-1002(h)(2).

In such hearings, or in de novo hearings before the district court, an affidavit
from KDHE stating the equipment and officer were certified on the date the licensee
was tested is admissible and "shall be admitted to prove such reliability without further
foundation requirement." K.S.A. 1997 Supp. 8-1002(i). Moreover, a "certified operator
of a breath testing device shall be competent to testify regarding the proper procedures
to be used in conducting the test." K.S.A. 1997 Supp. 8-1002(i).

The legislature has delegated to the Kansas Department of Health and
Environment (KDHE) the task of developing regulations establishing procedures,
qualifications, and standards of performing testing of human breath for law enforcement
purposes. K.S.A. 65-1,107(b). To that end, KDHE has adopted regulations which
establish criteria to apply when approving devices for breath testing and the procedures
to use when performing such tests. K.A.R. 28-32-1 et seq.

In interpreting these provisions, the Kansas appellate courts have repeatedly
held that the legislature has expressly found that results from breath tests are
sufficiently reliable to be admitted into evidence if the foundation establishes that the
testing machine was operated according to the manufacturer's operational manual and
any regulations set forth by KDHE and if the equipment and operator are certified. See
State v. Bishop, 264 Kan. 717, 957 P.2d 369 (1998); State v. Rohr, 19
Kan. App. 2d
869, 870, 878 P.2d 221 (1994); State v. Lieurance, 14 Kan. App. 2d 87, 91, 782 P.2d
1246 (1989), rev. denied 246 Kan. 769 (1990).

According to this clear line of cases, the legislature has deemed alcohol breath
tests admissible if the certification requirements are met and if the machine was
operated in the manner provided by KDHE. A licensee can challenge, factually,
whether the certifications were proper and whether the machine was operated in the
manner required by the operations manual. Thus, a licensee can raise inconsistencies
in the certification records or whether the testing officer actually followed all operational
protocols. However, it is legislatively established that the results are admissible as a
matter of law when the requisite foundation is laid under K.S.A. 1997 Supp. 8-1002(i).
For these reasons, the district court correctly concluded that under the statutes,
Meehan's expert's testimony was irrelevant to determine the admissibility of the
breathalyzer test results.

Moreover, the trial court concluded that the expert's testimony was irrelevant for
all purposes because Kansas law permits the licensee to obtain an independent breath
test and is advised of that right at the time the law enforcement officer gives the breath
test. The expert conceded that if there was a meaningful opportunity to obtain the
independent test, then his requirement of a two-test procedure would be satisfied. As a
result, the trial court reaffirmed its prior ruling that the evidence was not relevant.

No Kansas cases have addressed the extent to which a person can challenge
the reliability of the test because of inadequate procedures approved by KDHE.
Assuming that KDHE's regulations and procedures statutorily preclude scientific
challenges to the admissibility for properly supported breathalyzer results, the question
becomes whether there is any constitutional basis to challenge these rules.

The legislature has the power to establish rules defining the admissibility of
evidence in criminal, civil, and administrative proceedings. Those rules, however, must
give way if constitutional rights would be impaired. Chambers v. Mississippi, 410
U.S.
284, 302-03, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973) (Mississippi evidentiary rules
regulating impeachment and hearsay cannot impair criminal defendant's right to cross-examine
witnesses and present witnesses in his defense.). See State v. Brickhouse,
20 Kan. App. 2d 495, 500-02, 890 P.2d 353, rev. denied 257 Kan. 1093 (1995)
(hearsay rules and district court discretion cannot be applied unfairly to deprive criminal
defendant of the right to present his defense).

Accordingly, the court must ascertain whether the statute and regulations
establishing the reliability of breath testing in administrative revocation hearings are
contrary to due process.

A person's entitlement to due process in driver's license suspension cases is
well settled. In Dixon v. Love, 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct. 1723
(1977),
the United States Supreme Court reviewed the constitutionality of an Illinois statute
providing for the suspension of a driver's license based upon official records
establishing that the driver has been repeatedly convicted of serious traffic offenses.
The Dixon court said:

"'Suspension of issued licenses . . . involves state action that adjudicates important interests
of the
licensees. In such cases the licenses are not to be taken away without that procedural due process
required by the Fourteenth Amendment.' [Bell v. Burson, 402 U.S. 535, 539, 29 L.
Ed. 2d 90, 91 S. Ct.
1586 (1971)]." 431 U.S. at 112.

Once it is determined that due process applies to a specific governmental action,
however, the court must still determine "what process is due to protect against an
erroneous deprivation of that interest." Mackey v. Montrym, 443 U.S. 1, 10, 61 L.
Ed.
2d 321, 99 S. Ct. 2612 (1979). The procedural safeguards of the Due Process Clause
are designed to prevent erroneous deprivation of important interests by the
government. To achieve this end, however, the Due Process Clause does not require
perfect procedures.

"[T]he Due Process Clause has never been construed to require that the procedures used to
guard
against an erroneous deprivation of a protectible 'property' or 'liberty' interest be so
comprehensive as to
preclude any possibility of error. The Due Process Clause simply does not mandate that all
governmental
decision-making comply with standards that assure perfect, error-free determinations. [Citation
omitted.]"
443 U.S. at 13.

In determining "what process is due" in cases of driver's license revocations,
courts have weighed the varying interests of the State and the licensee. See, e.g.,
State v. Heironimus, 262 Kan. 796, 805-07, 941 P.2d 1356 (1997). In weighing
these
interests, the courts have concluded that due process does not require the State to
conduct hearings prior to suspending a person's license because of repeated traffic
violations, Dixon, 431 U.S. at 115, or for refusing to consent to a preliminary breath
analysis test under implied consent laws, Mackey, 443 U.S. at 18-19.

The Dixon and Mackey decisions, however, have only dealt with
the
requirements of pre-revocation proceedings when state law establishes the right to
post-revocation hearings. The United States Supreme Court does not appear to have
addressed the question of whether due process requires that a licensee be given an
unfettered right to present evidence in a suspension hearing.

The Kansas Supreme Court has recognized that due process entitles a licensee
to certain rights to present evidence during a quasi-judicial revocation hearing. This
includes the right to subpoena and cross-examine the arresting officer. Wulfkuhle v.
Kansas Dept. of Revenue, 234 Kan. 241, 246-47, 671 P.2d 547 (1983). In addition, a
factually detailed affidavit by the arresting officer is required by due process to support
a revocation when the officer does not testify at the hearing. Carson v. Division of
Vehicles, 237 Kan. 166, 174-76, 699 P.2d 447 (1985).

Our Supreme Court also, however, has recognized that the revocation hearing
does not implicate the same weighty private interests that are implicated in criminal
charges arising from DUI laws. State v. Heironimus, 262 Kan at 805. In
Heironimus,
the defendant challenged his criminal conviction for driving after being declared a
habitual violator. Defendant argued that the administrative procedures revoking his
license did not comport with due process and, therefore, his criminal conviction should
be overturned. The Supreme Court declined to "increase the weight assigned to the
private interest involved" because of the criminal repercussions if the licensee
continued to drive. Rather, weighing of the governmental and private interests in the
revocation process turned on the administrative nature of the proceedings. 262 Kan. at
805.

Breathalyzer equipment is recognized as being reliable and accurate by most
jurisdictions and is sufficiently accurate for courts to take judicial notice of their results,
even in criminal cases. See State v. Downie, 117 N.J. 450, 467-69, 569 A.2d 242,
cert.
denied, 498 U.S. 819 (1990) (prohibiting DUI defendants from challenging the reliability
of breathalyzer results based upon testimony regarding scientific problems with partition
ratio).

Courts have been willing to give deference to legislative determinations. Some
courts have held that evidentiary rules establish that the legislature deems these breath
tests are sufficiently accurate to reflect a person's blood alcohol concentration.
Accordingly, these courts have prohibited a general challenge to the validity and
reliability of legislatively or administratively approved breath tests. According to these
courts, such concerns must be raised with the legislature. State v. Allen, 104 Or.
App.
622, 627, 802 P.2d 690 (1990), rev. denied 311 Or. 426 (1991).

Where scientific opinions conflict on a particular point, the legislature is free to
adopt the opinion it chooses, and a court will not substitute its judgment on this issue.
State v. Brayman, 110 Wash. 2d 183, 193-94, 751 P.2d 294 (1988). "Given the
substantial support for acceptance of the scientific principles and the methods approved
by the legislature in measuring blood-alcohol concentration, it cannot be said that the
legislature's provisions are irrational" and, therefore, due process is not violated.
People v. Capporelli, 148 Ill. App. 3d 1048, 1055, 502 N.E.2d 11 (1986), rev.
denied
113 Ill. 2d 578 (1987). See State v. Rucker, 297 A.2d 400 (Del. 1972) (possible
variation in test results cannot be presented to trier of fact; issue is limited to whether
test was administered according to approved protocol); State v. Garthe, 145 N.J. 1,
13,
678 A.2d 153 (1996) (testing procedures adopted by administrative agency must be
upheld absent evidence that the protocols are not scientifically reliable to establish that
the breathalyzer machines are in proper operating order).

Many states have held that the State can enact DUI laws specifically designed to
reduce or eliminate scientific disputes that could come up in DUI cases. Many of these
cases deal with the admissibility of "partition ratio" evidence. The partition ratio is a
means by which a breath test result is converted to a corresponding blood alcohol
concentration. State v. McManus, 152 Wis. 2d 113, 121, 447 N.W.2d 654 (1989).
The
partition ratio defense was used frequently in states where the DUI laws only prohibited
driving with a blood alcohol concentration over a specified limit. Thus, when a
driver
was accused, based upon a breathalyzer test, of driving with a blood alcohol
concentration in excess of .10 percent, expert witnesses were used to attack the
partition ratio in order to dispute that the breath test result actually established the
driver's blood alcohol concentration exceeded the prohibited level.

As a result of the continuous litigation over breathalyzer testing, many states
changed their DUI laws to prohibit driving with a blood alcohol concentration or a
breath
alcohol concentration in excess of specified standards. After these laws went into
effect, courts began holding partition ratio evidence irrelevant. This expert evidence
was held not relevant under statutes which criminalized setting a breath alcohol
concentration standard because it no longer mattered whether the driver also exceeded
the prohibited blood alcohol level. See State v. McManus, 152 Wis. 2d at 123. See
also People v. Ireland, 33 Cal. App. 4th 680, 690, 39 Cal. Rptr. 2d 870 (1995)
(noting
that statute was changed to specifically include breath alcohol concentrations in order
to "'[e]liminate the need for conversion of a breath quantity to a blood concentration of
alcohol,'" thereby rendering partition ratio evidence irrelevant); People v. Bransford,
8
Cal. 4th 885, 893, 35 Cal. Rptr. 2d 613, 884 P.2d 70 (1994), cert. denied 514 U.S.
1130
(1995) (same).

Denying a criminal defendant from presenting expert evidence to challenge the
reliability of a breath test has been found in some cases not to deny the defendant of
due process. Because of the state's strong interest in regulating driving and the clear
evidence of havoc rendered by drunk drivers, the State has legitimate police power with
laws designed to penalize and deter driving after consuming alcohol or drugs. As noted
by the California Court of Appeals:

"The fact that the current state of scientific knowledge has not settled the ongoing
scientific
debate as to the best method of measuring inebriation does not preclude the Legislature from
regulating
driving based on conflicting scientific theories. It has been held that 'where scientific opinions
conflict on a
particular point, the Legislature is free to adopt the opinion it chooses, and the court will not
substitute its
judgment for that of the Legislature.' [Citation omitted.]" People v. Ireland, 33 Cal.
App. 4th at 693.

Attacks on administrative agencies' established techniques or methods of
performing chemical analysis also have been rejected. For example, in State v.
McManus, the defendants challenged the State Department of Transportation's
regulations approving the Intoxilyzer 5000 and its use. The Wisconsin Supreme Court
held that the agency's regulations were within the authority granted to it by the
legislature and that it was not established that the Intoxilyzer 5000 was unreliable. 152
Wis. 2d at 134, 138. Regulations may establish the evidentiary basis to establish blood
alcohol concentration based upon breath test results.

Several states have approved breath testing procedures that do not require more
than one test result. In Commonwealth v. Neal, 392 Mass. 1, 464 N.E.2d 1356
(1984),
the defendant challenged the reliability of breath test results after being convicted of
driving under the influence of alcohol. The defendant presented an expert who testified
that, among other problems, the lack of a second test to confirm the initial breath test
result made the result unreliable. While conceding that a two-test system would be a
better practice, the Massachusetts Supreme Court noted that the statute did not require
a second test for the results to be admissible. Moreover, the court found that the
existing testing procedures, when combined with the statutory right to an independent
test, provided sufficient safeguards to prevent erroneous criminal convictions. 392
Mass. at 22. See Loxtercamp v. Commissioner of Public Safety, 383 N.W.2d 335
(Minn. App. 1986) (rejecting challenges in administrative revocation hearing, including
challenge that one test is unreliable; driver can attack administration of the test, but
compliance with regulations creates prima facie proof of reliable test result).

It appears, however, that most states are using procedures that require two
breath test results. See California v. Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104
S.
Ct. 2528 (1984) (police's failure to preserve breath test sample not a denial of due
process; California's two-test procedures discount likelihood that samples would prove
exculpatory); State v. White, 253 N.J. Super. 490, 602 A.2d 295 (1991) (upholding
conviction for failing to submit to a second breath test; state regulations required
second breath test to verify first sample.) The two-test procedures have been adopted
to establish the reliability of the operation of different kinds of breathalyzer machines.
See Romano v. Kimmelman, 96 N.J. 66, 87, 474 A.2d 1 (1984) (two tests or other
evidence of reliability required for admission of results from model 900A breathalyzer
machine).

In California v. Trombetta, the United States Supreme Court seemed to
imply
that a driver's ability to obtain a timely independent test would be considered in
determining whether alcohol-testing procedures comported with due process. The
Supreme Court did not rely on the availability of independent testing in Trombetta,
however, because the record was not clear that the drivers were advised of their right to
obtain independent testing. 467 U.S. at 490, n. 11. At least one state has held that
due process does not require police to perform a second breath test to provide the
driver a sample for his or her own testing. State v. Shutt, 116 N.H. 495, 496-97, 363
A.2d
406 (1976).

The court must turn to the due process balancing analysis set forth in Mathews
v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). The government
clearly has an interest in developing reasonable means to remove potentially impaired
drivers from its roadways and to deter all licensees from drinking and driving. A
licensee, however, has a significant interest in keeping his or her driver's license in
today's society. Thus, he or she has the right to contest the evidence relied upon by
the State which forms the basis of any attempt to revoke his or her license.

The only evidence submitted by Meehan to challenge the test results relied upon
by KDR in suspending his license was the deposition testimony of an expert chemist.
Meehan's expert testified that with any chemical test a test result can only be
considered reliable if it can be replicated. Therefore, if only one breath test was done, it
would have no reliability because of the lack of verification. The expert agreed that the
Intoxilyzer 5000 can generally provide accurate results of breath alcohol concentration
within plus or minus .01 percent. However, the expert still contended more than one
test had to be performed on a subject for the results to be considered reliable. Based
upon his testing, 20 to 25 percent of the time, the Intoxilyzer 5000 given twice to the
same subject yielded results which varied more than .01 percent. The second test is, in
essence, confirmatory. The expert agreed that permitting a suspect the right to have an
independent test of breath or blood operated within the two-test theory, although the
expert did not believe, as a practical matter, such independent tests could be readily
obtained.

According to Meehan, breath test results are not sufficiently reliable to carry out
the State's interest in preventing drunk driving. The attack on the reliability of these
tests is premised solely on the fact that the law enforcement officer did not test two
samples of Meehan's breath. Does the lack of a two-test procedure violate due
process in an administrative proceeding? In other words, do the procedures
adequately guard against erroneous deprivation of Meehan's license?

As noted above, the Due Process Clause does not require the use of "perfect"
procedures or require procedures that are the most comprehensive possible.
Mackey,
443 U.S. at 13. Under Kansas law and KDHE regulations, a certified police officer is
required to use certified equipment to give the breath test. The equipment must be
maintained according to KDHE standards. While plaintiff's expert testified that a two-test
procedure was required to obtain scientifically reliable results, KDHE's regulations
generally ensure that reliable results will be obtained. Any risk of error in the use of
KDHE-approved equipment and procedures is minimized by state statute, which gives a
licensee the absolute right to obtain an independent test. K.S.A. 8-1004. Drivers are
required to be advised of their right to an independent test. K.S.A. 1997 Supp. 8-1001(f)(1).
Moreover, Kansas courts have stringently enforced the licensee's rights to
independent tests by excluding breath test results if a driver is not given an reasonable
opportunity for an independent test upon his or her request. State v. George, 12 Kan.
App. 2d 649, 754 P.2d 460 (1988). Based upon these procedures, Meehan's interest in
not being deprived of his driver's license is adequately protected.

As the State points out, the key concept involved here is one that is as familiar to
us as caveat emptor. Although Seneca the Younger is not present to put it in epigram
form, the controlling principle is that driving is a privilege, not a right--privilegium non
jus.

We believe Kansas has provided sufficient safeguards to appropriately protect
this privilege. The test and procedures provided are reliable. Expert testimony which
only purports to show that there may be marginally more accurate tests than that
mandated by the applicable statutes and regulations is not properly admissible in this
kind of administrative hearing either to prevent the admission of the test results at all, or
to challenge the weight to be given them.

In this case, the evidence is such that, at least in an administrative proceeding,
the State's reliance on a single breath test is not so inherently unreliable as to violate
due process. Licensees are protected adequately from erroneous deprivation of their
licenses by the reliability of the test and their ability to obtain an independent test under
K.S.A. 8-1004. The expert opinion that a different test or protocol for the test would be
more reliable is not relevant to the issues involved.